Skip to main content

Full text of "Juror's Guide - If You Are On a Jury, Be Fully Informed"

See other formats


Jurors' Handbook 



A Citizens Guide to Jury Duty 
Mr. Duane is an associate professor at Regent Law School in Virginia Beach, Virginia 



Did you know that you qualify for another, much more 
powerful vote than the one which you cast on election 
day? This opportunity comes when you are selected for 
jury duty, a position of honor for over 700 years. 

The principle of a Common Law Jury or Trial by the 
Country was first established on June 15, 1 21 5 at 
Runnymede, England when King John signed the 
Magna Carta, or Great Charter of our Liberties. It 
created the basis for our Constitutional, system of 
Justice. 

JURY POWER in the system of checks 
and balances: 

In a Constitutional system of justice, such as ours, there 
is a judicial body with more power than Congress, the 
President, or even the Supreme Court. Yes, the trial 
jury protected under our Constitution has more power 
than all these government officials. This is because it 
has the final veto power over all "acts of the legislature" 
that may come to be called "laws". 

In fact, the power of jury nullification predates our 
Constitution. In November of 1734, a printer named 
John Peter Zenger was arrested for seditious libel 
against his Majesty's government. At that time, a law of 
the Colony of New York forbid any publication without 
prior government approval. Freedom of the press was 
not enjoyed by the early colonialists! Zenger, however, 
defied this censorship and published articles strongly 
critical of New York colonial rule. 

When brought to trial in August of 1 735, Zenger 
admitted publishing the offending articles, but argued 
that the truth of the facts stated justified their 
publication. The judge instructed the jury that truth is 
not justification for libel. Rather, truth makes the libel 
more vicious, for public unrest is more likely to follow 
true, rather than false claims of bad governance. And 
since the defendant had admitted to the "fact" of 
publication, only a question of "law" remained. 

Then, as now, the judge said the "issue of law" was for 
the court to determine, and he instructed the jury to find 
the defendant guilty. It took only ten minutes for the 
jury to disregard the judge's instructions on the law 
and find Zenger NOT GUILTY. 



That is the power of the jury at work; the power to 
decide the issues of law under which the defendant is 
charged, as well as the facts. In our system of checks 
and balances, the jury is our final check, the people's 
last safeguard against unjust law and tyranny. 

A Jury's Rights, Powers, and Duties: 

But does the jury's power to veto bad laws exist under 
our Constitution? 

It certainly does! At the time the Constitution was 
written, the definition of the term "jury" referred to a 
group of citizens empowered to judge both the law and 
the evidence in the case before it. Then, in the February 
term of 1 794, the Supreme Court conducted a jury trial 
in the case of the State of Georgia vs. Brailsford 1 . The 
instructions to the jury in the first jury trial before the 
Supreme Court of the United States illustrate the true 
power of the jury. Chief Justice John Jay said: "It is 
presumed, that juries are the best judges of facts; it is, 
on the other hand, presumed that courts are the best 
judges of law. But still both objects are within your 
power of decision." (emphasis added) "...you have a 
right to take it upon yourselves to judge of both, 
and to determine the law as well as the fact in 
controversy". 

So you see, in an American courtroom there are in a 
sense twelve judges in attendance, not just one. And 
they are there with the power to review the "law" as well 
as the "facts"! Actually, the "judge" is there to conduct 
the proceedings in an orderly fashion and maintain the 
safety of all parties involved. 

As recently as 1972, the U.S. Court of Appeals for the 
District of Columbia said that the jury has an " 
unreviewable and irreversible power... to acquit in 
disregard of the instructions on the law given by the trial 
judge.... 2 

Or as this same truth was stated in a earlier decision by 
the United States Court of Appeals for the District of 
Maryland: "We recognize, as appellants urge, the 
undisputed power of the jury to acquit, even if its verdict 
is contrary to the law as given by the judge, and 



(3 Dall 1) 

US vs Dougherty, 473 F 2d 1 1 1 3, 1 1 39 (1 972) 



lof 14 



contrary to the evidence. This is a power that must exist 
as long as we adhere to the general verdict in criminal 
cases, for the courts cannot search the minds of the 
jurors to find the basis upon which they judge. If the jury 
feels that the law under which the defendant is 
accused, is unjust, or that exigent circumstances 
justified the actions of the accused, or for any reason 
which appeals to their logic of passion, the jury has the 
power to acquit, and the courts must abide by that 
decision." 3 

YOU, as a juror armed with the knowledge of the 
purpose of a jury trial, and the knowledge of what your 
Rights, powers, and duties really are, can with your 
single vote of not guilty nullify or invalidate any law 
involved in that case. Because a jury's guilty decision 
must be unanimous, it takes only one vote to effectively 
nullify a bad "act of the legislature". Your one vote can 
"hang" a jury; and although it won't be an acquittal, at 
least the defendant will not be convicted of violating an 
unjust or unconstitutional law. 

The government cannot deprive anyone of "Liberty", 
without your consent! 

If you feel the statute involved in any criminal case 
being tried before you is unfair, or that it infringes upon 
the defendant's God-given inalienable or Constitutional 
rights, you can affirm that the offending statute is really 
no law at all and that the violation of it is no crime; for 
no man is bound to obey an unjust command. In other 
words, if the defendant has disobeyed some man-made 
criminal statute, and the statute is unjust, the defendant 
has in substance, committed no crime. Jurors, having 
ruled then on the justice of the law involved and finding 
it opposed in whole or in part to their own natural 
concept of what is basically right, are bound to hold for 
the acquittal of said defendant. 

It is your responsibility to insist that your vote of not 
guilty be respected by all other members of the jury. For 
you are not there as a fool, merely to agree with the 
majority, but as a qualified judge in your right to see that 
justice is done. Regardless of the pressures or abuse 
that may be applied to you by any or all members of the 
jury with whom you may in good conscience disagree, 
you can await the reading of the verdict secure in the 
knowledge you have voted your conscience and 
convictions, not those of someone else. 

So you see, as a juror, you are one of a panel of twelve 
judges with the responsibility of protecting all innocent 
Americans from unjust laws. 

Jurors Must Know Their Rights: 



US vs Moylan, 41 7 F 2d 1 002, 1 006 (1 969) 



You must know your rights! Because, once selected for 
jury duty, nobody will inform you of your power to judge 
both law and fact. In fact, the judge's instructions to the 
jury may be to the contrary. Another quote from US vs 
Dougherty 4 : "The fact that there is widespread 
existence of the jury's prerogative, and approval of its 
existence as a necessary counter to case-hardened 
judges and arbitrary prosecutors, does not establish as 
an imperative that the jury must be informed by the 
judge of that power". 

Look at that quote again, the court ruled jurors have the 
right to decide the law, but they don't have to be told 
about it. It may sound hypocritical, but the Dougherty 
decision conforms to an 1895 Supreme Court decision 
that held the same thing. In Sparf vs US 5 , the court 
ruled that although juries have the right to ignore a 
judge's instructions on the law, they don't have to be 
made aware of the right to do so. 

Is this Supreme Court ruling as unfair as it appears on 
the surface? It may be, but the logic behind such a 
decision is plain enough. 

In our Constitutional Republic, note I did not say 
democracy, the people have granted certain limited 
powers to government, preserving and retaining their 
God-given inalienable rights. So, if it is indeed the 
juror's right to decide the law, then the citizens should 
know what their rights are. They need not be told by the 
courts. After all, the Constitution makes us the masters 
of the public servants. Should a servant have to tell a 
master what his rights are? Of course not, it's our 
responsibility to know what our rights are! 

The idea that juries are to judge only the "facts" is 
absurd and contrary to historical fact and law. Are juries 
present only as mere pawns to rubber stamp tyrannical 
acts of the government? We The People wrote the 
supreme law of the land, the Constitution, to "secure the 
blessings of liberty to ourselves and our posterity." Who 
better to decide the fairness of the laws, or whether the 
laws conform to the Constitution? 

Our Defense - Jury Power: 

Sometime in the future, you may be called upon to sit in 
judgment of a sincere individual being prosecuted 
(persecuted?) for trying to exercise his or her Rights, or 
trying to defend the Constitution. If so, remember that in 
1804, Samuel Chase, Supreme Court Justice and 
signer of the Declaration of Independence said: "The 
jury has the Right to judge both the law and the facts". 
And also keep in mind that "either we all hang together, 
or we most assuredly will all hang separately". 



(cited earlier) 
(156 US 51) 



2 of 14 



You now understand how the average citizen can help 
keep in check the power of government and bring to a 
halt the enforcement of tyrannical laws. Unfortunately, 
very few people know or understand this power which 
they as Americans possess to nullify oppressive acts of 
the legislature. 

America, the Constitution and your individual rights are 
under attack! Will you defend them? READ THE 
CONSTITUTION, KNOW YOUR RIGHTS! Remember, 
if you don't know what your Rights are, you haven't got 
any! 



[Copyright© 1996 Litigation. Originally 
published as 22:4 Litigation 6-60 (1996).] 

J ury Nullification: 

The Top Secret 

Constitutional 

Right 

by James Joseph Duane 

A bill now pending in the Missouri state legislature has 
whipped up a firestorm of controversy. Judges and 
prosecutors there call it "a gut-punch to democracy," 
"an invitation to anarchy," and a bill that "flies in the face 
of everything this country stands for." One county 
prosecutor has even called for the resignation of the 20 
state representatives who introduced the bill. 

What could have caused such calamity? This 
supposedly radical legislation would merely require 
judges to tell criminal juries the undisputed fact that 
they have "the power to judge the law as well as the 
evidence, and to vote on the verdict according to 
conscience." It is hard to remember the last time there 
was so much turmoil over a proposal to declassify a 
government secret during peacetime. 

Meanwhile, out in Nevada, a 50-year-old florist and 
grandmother almost landed in prison for her efforts to 
help spread the word to jurors. When her son went on 
trial for drug charges in federal court, Yvonne Regas 
and a friend papered the windshields of nearby parked 
cars, hoping to let the jurors learn the completely 
unexpected fact that her son faced 450 years in prison 
for a single drug transaction nine years earlier. Federal 
authorities charged her with jury tampering and 



obstruction of justice, but eventually dropped the 
charges. Presumably, they gave up hope of figuring out 
how they could get jurors to convict her without showing 
them the contents of the pamphlets she had been 
distributing - and then her jury would know the truth 
about nullification. 

Despite all the modern government resentment toward 
"jury nullification," its roots run deep in both our history 
and law. At least two provisions of the Constitution, and 
arguably three, protect the jury's power to nullify. They 
also explain why that power is limited to criminal cases, 
and has no analogy in the civil context. 

First, it is reflected in the Sixth Amendment, which 
grants the accused an inviolable right to a jury 
determination of his guilt or innocence in all criminal 
prosecutions for serious offenses. Because of this right, 
a trial judge absolutely cannot direct a verdict in favor of 
the State or set aside a jury's verdict of not guilty, "no 
matter how overwhelming the evidence." 6 Any violation 
of this rule is automatically reversible error without 
regard to the evidence of guilt. 7 Indeed, the point is so 
well settled that it was announced without dissent in 
Sullivan by a Court that has been unanimous on only a 
few constitutional questions in the past ten years. 

This rule is applied with a rigor that is without parallel in 
any area of civil practice. For example, it is reversible 
error to direct a verdict of guilty over the defendant's 
objection, even if he takes the witness stand and admits 
under oath that he committed every element of the 
charged offense! 8 (Although one might fairly describe 
that particular defense strategy as a questionable use 
of direct examination.) 

Judicial Deference 

Likewise, when a judge takes judicial notice of a fact in 
a criminal case - for example, that the defendant could 
not have boarded a train in New York and exited in 
Texas without somehow crossing state lines - he will 
tell the jury they "may" accept that fact as proven 
without further evidence. But he may not tell them that 
they are required to do so, or take the factual question 
away from them, no matter how obvious the fact might 
seem. 9 Even where the defendant and his attorney 
enter into a formal stipulation admitting an element of 
the offense, the jury should be told merely that they 
may regard the matter to be "proved," if they wish, but 
the judge still cannot direct a verdict on that factual 
issue or take it away from the jury over the defendant's 



6 Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). 

7 Id. 

8 Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168 
(Ga. Ct. App. 1982). 

9 See Advisory Committee Notes to Fed. R. Evid. 
201(g). 

3 of 14 



objection. All of these rules are designed, in part, to 
protect the jury's inviolable power to nullify and to avoid 
the reversible error always committed when "the wrong 
entity judge[s] the defendant guilty." 11 

Second, the roots of nullification also run deep into the 
12 Double Jeopardy Clause. Even where the jury's 
verdict of not guilty seems indefensible, that clause 
prevents the State from pursuing even the limited 
remedy of a new trial. This rule, by design, gives juries 
the power to "err upon the side of mercy" by entering 
"an unassailable but unreasonable verdict of not 
guilty." 13 

Finally, the jury's power to nullify is protected by our 
abiding "judicial distaste" for special verdicts or 
interrogatories to the jury in criminal cases. 14 Unlike in 
civil cases, where such devices are routinely employed, 
in criminal cases it has frequently been held to be error 
to ask a jury to return anything but a general verdict of 
guilty or not guilty. 15 This rule is designed to safeguard 
the jury's power "to arrive at a general verdict without 
having to support it by reasons or by a report of its 
deliberations," and to protect its historic power to nullify 
or temper rules of law based on the jurors' sense of 
justice as conscience of the community. 16 The jury is 
given "a general veto power, and this power should not 
be attenuated by requiring the jury to answer in writing 
a detailed list of questions or explain its reasons." 
17 Although the issue is far from settled, a powerful 
argument can be made that this rule "is of constitutional 
dimensions," and a direct corollary of the Sixth 
Amendment's protection of the jury's power to nullify. 18 

These constitutional rules, in combination, give a 
criminal jury the inherent discretionary power to "decline 
to convict," and insure that such "discretionary 
exercises of leniency are final and unreviewable." 19 This 
state of affairs does not even have a rough parallel in 
civil cases, where the Seventh Amendment right to a 
"trial by jury" does not preclude judges from granting 
summary judgment, directed verdicts, and new trials. (In 
effect, although both amendments are written quite 



10 United States v. Muse, 83 F.3d 672, 679-80 (4th Cir. 
1996). 

11 Rose v. Clark, 478 U.S. 570, 578 (1986). 

12 (P-7) 

13 Jackson v. Virginia, 443 U.S. 307, 317 n. 10 (1979). 

14 United States v. Oliver North, 910 F. 2d 843, 910-11 
(D.C. Cir. 1990). 

15 United States v. McCracken, 488 F.2d 406, 418-419 
(5th Cir. 1974) (collecting cases). 

16 Id:, United States v. Spock, 416 F.2d 165, 181-82 (1st 
Cir. 1969). 

17 United States v. Wilson, 629 F.2d 439, 443 (6th Cir. 
1980). 

18 Wayne LaFave & Jerold Israel, Criminal Procedure § 
24.7(a) (2d ed. 1992). 

19 McCleskey v. Kemp, 481 U.S. 279, 311 (1987). 



similarly, the Supreme Court has interpreted the Sixth 
Amendment to give criminal defendants a right to a jury 
and a trial; the Seventh Amendment, where it applies, 
only gives civil litigants the right to a jury if there is a 
trial.) 

The existence of a criminal jury's power to nullify is 
currently as well settled as any other rule of 
constitutional law. It is a cornerstone of American 
criminal procedure. The far more controversial issue -- 
and much more frequently litigated -- is that perennial 
dilemma: What should we tell the kids? Should (or 
must) the judge tell the jurors anything about their 
power (or right) to nullify? Should the judge at least 
allow the defense to tell them? If so, how much should 
we tell them, and how should we do it? These issues lie 
at the very core of our criminal justice system, and have 
been debated by lawyers, journalists, philosophers, and 
patriots for two centuries. It is therefore ironic that these 
questions have, at least in recent decades, generated 
one of the most remarkable displays of unanimity ever 
orchestrated by state and federal courts on any issue of 
law in American history. 

It would take at most four words to fairly summarize the 
unanimous consensus of state and federal judges on 
the idea of telling jurors about their power to nullify: 
"Forget it. No way." Even while extolling the beauty and 
majesty of our commitment to the jury's constitutional 
role as a guardian against tyranny, no state or federal 
appellate court in decades has held that a trial judge is 
even permitted -- much less required to explicitly 
instruct the jurors on their undisputed power to return a 
verdict of not guilty in the interests of justice. The 
federal courts are unanimous and have been for years, 
for example, 20 ("a district judge may not instruct the jury 
as to its power to nullify"). So are the state appellate 
courts, for example? 

State Law 

There is a pervasive myth that three states supposedly 
allow jury nullification instructions: Georgia, Maryland, 
and Indiana. 22 Some lists also include Oregon. This is 
presumably because those states have laws or 
constitutional provisions suggesting that criminal jurors 
are judges of the law and the facts. But the myth is 
false. Despite their differing constitutions, all four states 



20 United States v. Manning, 79 F. 3d 212, 219 (1st Cir. 
1996) 

21 Mouton v. Texas, 923 S.W.2d219 (Tex. Ct. App. 
1996); Michigan v. Demers, 195 Mich. App. 205, 489 
N.W.2d 173 (Mich. Ct. App. 1992). 

22 See State v. Morgan Stanley & Co., 194 W. V. 163, 
175, 459 S.E.2d 906, 918 n.27 (W. V. 1995); Paul 
Butler, Racially Based Jury Nullification: Black Power in 
the Criminal Justice System, 105 Yale L.J. 677, 704 
n.147(1995). 

4 of 14 



have held that a jury has, at most, the power to acquit a 
guilty man, not the right, and should not be told that it 
may ignore or nullify the law. 23 

Resourceful defendants and their attorneys have tried 
every conceivable route around this immovable 
roadblock. All have been thwarted. Without exception, 
the appellate courts will not allow a defense attorney to 
use her closing argument to tell the jurors about their 
power to nullify, or to urge them to use it. 24 

Nor can the defense offer evidence that is relevant to 
nothing 25 but the justness of a conviction or acquittal, or 
is otherwise designed to induce the jury to nullify. 26 This 
includes, most notably, any information about the 
sentence faced by the defendant, even if it is a 
minimum mandated by law. 27 

Judicial disapproval also extends to any evidence or 
argument designed solely to persuade the jury that the 
government was guilty of misconduct in its investigation 
or prosecution. 28 

Predictably, the battle is moving to the earliest stages of 
the trial, but the results are the same. Requests to ask 
jurors about nullification on voir dire have been 
denied. 29 

One pro se defendant tried to persuade the Supreme 
Court that her trial judge improperly refused to let her 
challenge for cause those prospective jurors who did 
know or understand the term "jury nullification." 30 The 
Court decided it might tackle that one later, and denied 
review. 31 

Defendants will go to any lengths to get this forbidden 
topic of discussion before the jury. In one recent case 
involving minor charges in traffic court, a pro se 
defendant offered the State of Pennsylvania a bargain 
of almost Faustian proportions. He asserted a right to 
execute a release of his property rights under state law 
and all of his privileges and immunities secured by the 



23 See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 
S.E.2d 642, 647 (Ga. 1990). 

24 See, e.g., United States v. Muse, 83 F.3d 672, 677 
(4th Cir. 1996). 

25 (P-8) 

26 United States v. Griggs, 50 F.3d 17, 1995 WL 7669 
(9th Cir. 1994). 

27 United States v. Johnson, 62 F.3d 849, 850-51 (6th 
Cir. 1995). 

28 United States v. Rosado, 728 F.2d 89, 93-95 (2d Cir. 
1984). 

29 United States v. Datche,. 830 F. Supp. 411,418 
(M.D. Tenn. 1993). 

30 Mendonca v. Oregon, 55 U.S.L.W. 3362 (1986) 
(petition for certiorari). 

31 479 U.S. 979 (1986). 



Fourteenth Amendment, subject to the condition that he 
would revert to the status of an "American Freeman" 
with all of the "common law rights thereof, including the 
right to a jury possessing the power of jury 
nullification." 3 The Supreme Court passed up this 
chance to decide the issue, perhaps preferring to wait 
until it percolates a bit more in the lower courts. 33 

Judicial hostility to jury nullification goes well beyond 
the stone wall of silence erected around the jury box. 
Case after case has approved jury instructions actually 
designed to imply that jurors do not have such power at 
all, or to "instruct the jury on the dimensions of their 
duty to the exclusion of jury nullification." 34 For example, 
criminal jurors are routinely ordered: "You must follow 
my instructions on the law, even if you thought the law 
was different or should be different," 35 and "even if you 
disagree or don't understand the reasons for some of 
the rules." 36 

In extreme cases, this judicial hostility even extends to 
dishonesty. As Chief Judge Bazelon correctly observed, 
current law on this topic is tantamount to a "deliberate 
lack of candor." 37 In one especially outrageous case, 
the jury deliberated for hours in a criminal tax case 
before sending the judge a note asking: "What is jury 
nullification?" The defendant was convicted shortly after 
the judge falsely told the jury that "there is no such thing 
as valid jury nullification," and that they would violate 
their oath and the law if they did such a thing. 38 Over a 
vigorous dissent, the Court of Appeals deemed the 
instruction proper and affirmed the conviction 39 , even 
after the defendant furnished the court with an affidavit 
from a juror who swore he would have acquitted if "we 
were told the truth about jury nullification." ° 

This widespread judicial pattern is highly ironic. The 
courts have unanimously (and erroneously) refused to 
let defense attorneys argue for nullification, typically by 
insisting that the jury has no power to consider what the 
law should be, and that juries have no lawful task but to 
decide whether the defendant broke the law. Yet, in a fit 
of sheer inconsistency, the same federal courts of 



32 Phelps v. Pennsylvania, 59 U.S.L.W. 3522 (1991) 
(petition for certiorari). 

33 498 U.S. 1088 (1991). 

34 United States v. Sepulveda, 15 F.3d 1 161, 1 190 (1st 
Cir. 1993). 

35 Eighth Circuit Pattern Criminal Jury Instruction 3.02 
(1991), 

36 Federal Judicial Center, Pattern Criminal Jury 
Instruction 9 (1987). 

37 United States v. Dougherty, 473 F.2d 1113,1 139 
(D.C. Cir. 1972) (dissenting opinion). 

38 United States v. Krzyske, 836 F.2d 1013, 1021 (6th 
Cir. 1988). 

39 , id. 

40 United States v. Krzyske, 857 F.2d 1089, 1095 (6th 

Cir. 1988). 

5 of 14 



appeals are also unanimous that it is permissible for 
prosecutors to urge juries to act as the "conscience of 
the community" and use their verdict to "send a 
message" about whether society should be willing to 
tolerate the defendant's alleged conduct. 41 

The Sixth Amendment creates a right for the defendant 
to insist on a jury to act as a community conscience and 
protect him from government oppression, and yet only 
the State is allowed, when it chooses, to ask the jury to 
consider matters of morality and conscience. 42 Thus 
have we witnessed a complete perversion of the 
constitutional priorities and structure. 

One might fairly summarize the case law this way: "You 
may hope that the jury will refuse to apply a harsh, 
unfair, or inequitable law, but you may not urge them to 
do so." 43 But why not? Why can't we tell the jury a little 
bit more than we do about the truth? Not since the 
storming of the Bastille have the forces of government 
been so tightly united in their opposition to a popular 
uprising. Numerous arguments have been advanced by 
judges around the country for this refusal, but not one 
stands up to serious analysis. 

1 . "Jury nullification is an embarrassing glitch in our 
law." What should we tell jurors about their power to 
nullify? The answer depends largely on one's attitude 
toward a closely related issue: Just what is nullification 
anyway, and why is it protected by the Constitution? 
One of the most frequent justifications for refusing to tell 
juries about their power to nullify is the pernicious 
suggestion that this power is the product of some 
accidental or regrettable flaw in our system of justice. 

Jury nullification has been described in many ways, 
some of which cannot be repeated in respectable 
society. At one extreme, a federal judge recently hailed 
it as "one of the peaceful barricades of freedom. 44 Even 
courts declining to instruct juries about the doctrine 
have conceded that "the pages of history shine on 
instances of the jury's exercise of its prerogative to 
disregard uncontradicted evidence and instructions of 
the judge." 45 Notable examples include the courageous 



41 James J. Duane, "What Message Are We Sending to 
Criminal Jurors When We Ask Them to 'Send a 
Message' With Their Verdict?," 22 Am. J. Crim. Law 
565, 576-79 (1995). 

42 Id. at 590-602. 

43 Steven Lubet, Modern Trial Advocacy 436 (1993) 
(emphasis added). 

44 ." JackB. Weinstein, "Considering Jury 'Nullification': 
When May and Should a Jury (p.9)Reject the Law to Do 
Justice, " 30 Am. Crim. L Rev. 239, 254 (1993). 
45 United States v. Dougherty, 473 F.2d 1113,1 130 
(D.C. Cir. 1972). 



refusal of northern jurors to convict "guilty" men who 
violated the fugitive slave laws. 46 

On the other hand, some courts have suggested that 
the power to nullify is merely "a tolerated anomaly in the 
rule of law.'" 47 They call it a void in the law, giving jurors 
"the power to do what they want in a given case 
because neither the prosecution nor the court has the 
authority to compel them to do what they should." 48 
Others assert that the power exists only because "there 
is nothing to prevent" it, but that it "is not a legally 
sanctioned function of the jury and should not be 
encouraged by the court." The sensational-sounding 
charges have been made that a nullification instruction 
would "encourage the jury to abdicate its primary 
function," id., or that it would "in essence direct juries 
that they could run amuck" 50 Scores of other cases 
have tried to capture this same point by insisting that 
juries always have the power to nullify, but never the 
right to do so. 

So who is correct? Is the institution of nullification 
deliberately enshrined and protected in the Constitution 
as a valuable political end in itself, as some have 
suggested? Or is it merely a regrettable byproduct of 
careless drafting, or an anomalous but necessary evil 
we "tolerate" because of our commitment to some 
greater good? And how could the courts be so very far 
apart in their responses? The answer to this confusion 
depends on how one defines "jury nullification," a term 
with various shades of meaning. 

In its broadest form, "nullification" has often been used 
to describe the jury's "raw power to set an accused free 
for any reason or for no reason," 51 even for reasons 
having nothing to do with justice or guilt. 

The Jury's Rights 

An acquittal may come because the jurors found the 
defendant attractive, or were members of the same 
race, or harbored hatred toward the victim's race, or 
merely because they were tired of being sequestered 
for months. This possibility, which might fairly be called 
"lawless nullification," is protected by our Constitution 
not for its own sake, but because of our commitment to 
the secrecy of jury deliberations and the finality and 
unreviewability of their verdicts. (This is true in much 
the same way that the First Amendment protects the 



46 Id. 

47 Mayfield v. United States, 659 A.2d 1249, 1254 (D.C. 
1995). 

48 State v. Bjerkaas, 472 N. W.2d 615, 619 (Wis. App. 
1991). (emphasis added). 

49 State v. Weinberg, 631 N.E.2d 97, 100 (N.Y. 1994). 

50 Davis v. State, 520 So. 2d 493, 494-95 (Miss. 1988). 

51 Sepulveda, 15 F.3d at 1 190, 

6 of 14 



right to say many things that nobody would publicly hold 
up as a model of good civic behavior.) 

There is no compelling reason why a jury should learn 
every dirty little secret of our system of justice, 
especially if that knowledge would undermine the 
purpose of the proceeding or the jurors' perception of 
the seriousness of their role. 52 It is an error to give jury 
misleading view of the extent of appellate review of their 
sentencing recommendation. Thus, the courts are 
correct to hold that the law should not require or 
encourage a judge to remind jurors of the regrettable 
fact that they have the raw power to acquit for any 
arbitrary or spiteful reason, or indeed for no reason at 
all. But in no reported case, to my knowledge, has any 
defendant or his attorney requested an instruction that 
would go even half that far. 

In the real world, outside the pages of appellate judicial 
opinions, defendants almost invariably make the far 
more modest request that the jury be told merely of its 
authority to acquit an accused if a conviction would 
conflict with their deeply seated sense of morality and 
justice. In this, its purest form, the possibility of 
"nullification" is not some accidental byproduct of 
careless drafting in the Constitution, nor of our 
commitment to some greater good. It is one of the very 
reasons for the existence of the Sixth Amendment's 
inflexible insistence that the accused has the right to a 
jury of his peers. 

The jury is there, by design, "to prevent oppression by 
the Government" and to "protect against unfounded 
criminal charges brought to eliminate enemies and 
against judges too responsive to the voice of higher 
authority." The jury's role "as a check on official 
power" is in fact "its intended function." 54 The jury 
injects "a slack into the enforcement of law, tempering 
its rigor by the mollifying influence of current ethical 
conventions." 55 That is why a directed verdict for the 
state would be not merely unconstitutional -- it "would 
be totally alien to our notions of criminal justice," since 
"the discretionary act of jury nullification would not be 
permitted." 56 

This is also the defect in the long line of cases that 
disparage 57 nullification by claiming that the jury has 
only the "power," but not the "right," to do it. That may 
be a fair description of the jury's latitude to acquit for 
any lawless reason that pleases them -- its "power to 



52 See Caldwell v. Mississippi, 472 U.S. 320, 323 (1985) 

53 Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968). 

54 Batson v. Kentucky, 476 U.S. 79, 86-87 n. 8 (1986). 
55 ." United States ex rel. McCann v. Adams, 126 F.2d 
774, 775-76 (2d Cir. 1942) (Learned Hand, J.). 

56 Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976) 

(plurality opinion). 

57 (p.10) 



bring in a verdict in the teeth of both law and facts. 
But the jury's power to acquit out of justice or mercy is a 
constitutionally protected right. If not their right, it is at 
least the defendant's firmly settled right that he insist on 
a jury with such power, regardless of whether the proof 
of his technical legal guilt is literally overwhelming and 
uncontradicted. 59 Any judicial instructions that would 
prevent the exercise of this right are unconstitutional. 

These considerations about the historical roots of the 
right to a jury trial, by themselves, do not dispose of the 
question whether the jury should be instructed about 
nullification. But they easily suffice to dispatch the 
absurd suggestion that the latitude allowed for an 
acquittal based on the jury's sense of justice should be 
kept from the jury because it is only a flaw in the 
system's design, or that it is not a legally sanctioned 
function of the jury. 

2. "Nullification instructions encourage the jury to violate 
the law." Some courts have reasoned that a nullification 
instruction would permit, if not encourage, the jurors to 
disregard or break the law. One court even held that it 
is proper to affirmatively instruct the jurors that they 
would "violate the law" if they engaged in nullification or 
if they violated any of the judge's instructions on the 
law. Another has reasoned that "anarchy would result 
from instructing the jury that it may ignore the 
requirements of the law." 61 Such assertions are 
baseless. 

Contrary to the widespread myth popular among 
judges, there is no "law" that requires juries to convict 
every man shown to be technically guilty beyond a 
reasonable doubt. "The power of the courts to punish 
jurors for corrupt and incorrect verdicts," 62 that darling of 
the Star Chamber's nursery, was banished from the 
pages of Anglo-American law centuries ago. Today, at 
its very core, our system of justice is unflinchingly 
committed to the liberty of criminal juries to "err upon 
the side of mercy," 63 or to "refuse to convict even 
though the evidence supported the charge." 64 Any 
system that restricted such liberty "would be totally alien 
to our notions of criminal justice." 65 In this respect, 
nullification is every bit as lawful as leniency extended 
by the prosecutor, or the judge, or the governor. 66 



58 Horning v. District of Columbia, 254 U.S. 135, 138 
(1920). 

59 Sullivan v. Louisiana, 508 U.S. 275, 277-82 (1993). 

60 United States v. Krzyske, 836 F.2d 1013, 1021 (6th 
Cir. 1988). 

61 Powell, 955 F.2d at 1213. 

62 Dougherty, 473 F.2d at 1 130, 

63 Jackson, 443 U.S. at 317, 

64 Gregg, 428 US. at 199 n.50. 

65 Id. 

66 Id. 

7 of 14 



Nor does any "law" forbid a jury from pardoning a man 
who violated an unjust statute, even if an acquittal 
requires them to ignore the court's instructions on the 
law. The Constitution does no such thing; it actually 
protects the jury's right to acquit based on their sense of 
justice. The penal code does not criminalize such 
conduct, and would be clearly unconstitutional if it did. 
Not even the Bible imposes any such rule. 67 "Follow 
justice and justice alone". If there is any such "law," it is 
true only in the narrow sense of illegitimate case law 
made up by judges acting well beyond the scope of 
their lawful authority. 

Judges who tell each other that "nullification is illegal" 
are more than vaguely reminiscent of the judge who 
once told a criminal defendant: "Rule Forty-Two. All 
persons more than a mile high to leave the court! It's 
the oldest rule in the book." As the defendant adroitly 
responded: "Then it ought to be Number One" -- or it 
ought to be, at the very least, written down in the 
Constitution, or the penal code, or somewhere besides 
judicial opinions. 

3. "The Supreme Court said not to tell the jury about it." 
A surprising number of courts have tried to blame the 
Supreme Court for their refusal to tell juries about the 
power to acquit on moral grounds. That myth is also 
false. The Supreme Court has never said such a thing. 

In the two cases widely cited for this proposition, the 
Court merely declared that a jury is not entitled to 
decide what the law is or should be, and that "a judge 
always has the right and duty to tell them what the law 
is upon this or that state of facts that may be found." 69 
This language has been widely cited by lower courts as 
authority for their refusal to permit any argument or 
instructions on nullification. 

In fact, however, Horning and Sparf have nothing to do 
with this matter. It would indeed be improper to tell a 
jury that "they are to determine the rules of law." 71 In 
Sparf, for example, the Supreme Court properly refused 
a murder defendant's request that his jury be told they 
could convict him of manslaughter out of leniency, even 
though he conceded that there was no evidence to 
support a finding of guilt on such a lesser charge! 72 If 
that were the law, of course, we ought to read the jury 
the entire penal code, just in case manslaughter seems 
too harsh, so they could perhaps convict him of driving 



67 See Deuteronomy 16:20 

68 Lewis Carroll, Alice's Adventures in Wonderland 256 
(Bramhall House 1960). 

69 Horning v. District of Columbia, 254 U.S. 135, 138 
(1920) (Holmes, J.); accord Sparf and Hansen v. United 
States, 156 U.S. 51 (1895). 

70 E.g., Krzyske. 836 F.2d at 1021. 

71 Dougherty, 473 F.2d at 1136. 

72 156 U.S. at 99. 



with a bad muffler instead, or maybe acquit him on the 
grounds of intoxication. 73 

Our entire system of justice would be undermined if 
jurors had the liberty to return a false verdict -- even for 
benign motives of mercy -- convicting a defendant of a 
lesser offense she simply could not have committed, or 
acquitting her because of some legal defense with 
absolutely no basis in the evidence. 

But that straw man has nothing to do with the typical 
case of a defendant seeking an instruction on 
nullification. Such instructions need not suggest that 
jurors be told they can decide for themselves what the 
law is or should be, or that they can convict the 
defendant of some lesser offense (or acquit on the 
basis of some affirmative defense) with no basis in the 
facts. Our law does not countenance such contrivances 
and should not encourage them. But a proper 
nullification instruction or argument would merely tell 
the jury the fact -- or at least confirm their intuitive 
suspicion that our law intentionally allows them the 
latitude to "refuse to enforce the law's harshness when 
justice so requires." 74 Whether that information should 
be given to the jury has never been considered or 
decided by the Supreme Court. Id. But it is the height of 
hypocrisy to refuse to report that truthful information 
about our constitutional law to the jury on the pretense 
that the judge "has the right and duty to tell them what 
the law is. That language, taken literally, would 
require the judge to tell the jury much more than we do 
about nullification. 

There is one variant of nullification, however, that 
appears to have been recently foreclosed by the 
Supreme Court. Without specifically addressing the 
topic of nullification, the Court recently held that jurors 
should not be given distracting information about the 
sentencing consequences of their verdict, even when 
that evidence might serve to correct inconsistent and 
erroneous beliefs thejury is likely to harbor about the 
effect of their verdict. 6 That reasoning would also 
appear to apply where the defendant seeks to tell the 
jury about sentencing information solely to persuade 
them to acquit out of compassion and mercy, as the 
lower courts have already acknowledged. 77 



Limiting the Jury's 
Discretion 



960. 



73 (P.H) 

74 LaFave and Israel, Criminal Procedure § 22. 1, 

75 Horning, 254 U.S. at 138 (emphasis added). 

76 Shannon v. United States, 1 14 S. Ct. 2419, 2427 
(1994). 

77 See United States v. Johnson, 62 F.3d at 850. 

8 of 14 



The reasoning of Shannon, consistently applied, would 
take a big bite out of the jury's power to nullify. An 
oppressive political regime could achieve some 
surprising results by persuading a jury to convict an 
accused of some seemingly minor offense that carries a 
surprisingly draconian penalty. Without accurate 
sentencing information, jurors would be unable to nullify 
such a monstrous law -- or worse yet, might even end 
up playing right into the government's hands by 
guessing incorrectly. 

Heidi Fleiss, for example, was convicted of consensual 
sex offenses by jurors who were "outraged" to later 
learn she faced a minimum three-year prison sentence. 
Despite several jurors' belief that she was innocent, the 
jurors had struck a deal after four days of deliberating 
and acquitted her of drug charges -- where the 
evidence was stronger -- because they were "under the 
mistaken impression that the narcotics charge carried a 
stiffer penalty." 78 (Of course, trials like this one -- and 
many others -- undermine the Supreme Court's crucial 
assumption that jurors can be trusted to heed our 
standard instruction to disregard possible punishment 
when reaching their verdict.) 

Shannon did not close the door to most forms of 
nullification, however. As the Court properly reasoned, it 
would be difficult to decide where to draw the line once 
we open the jury room door to even truthful information 
about the long-run sentencing consequences of their 
verdicts. 79 But that logic does not apply to the normal 
case of nullification, where the accused desires an 
acquittal based only on the moral implications of the 
evidence already properly before the jury concerning 
the details of his conduct, and does not seek to 
smuggle into the record any facts they did not already 
learn from the prosecutor. 

4. "We can't encourage the jurors to violate their oath." 
Perhaps the most threadbare judicial objection to 
nullification arguments is that "neither the court nor 
counsel should encourage jurors to violate their oath." 80 
These cases routinely assume that a jury's oath forbids 
them from nullifying for any reason, even if based on 
their firm belief that a conviction would be a terrible 
miscarriage of justice. One prosecutor recently 
reiterated the age-old complaint that "jury nullification 
gives status and dignity to what is basically violating 
your oath as a juror to follow the law." 81 

Moreover, it has been recommended that federal 
judges go one step further and routinely tell jurors, "You 



78 Shawn Hubler, "Court Overturns Fleiss' Conviction, 
Orders New Trial," LA. Times, atA1 (May 30, 1996). 

79 Shannon, 1 14 S. Ct. at 2427-28 &n.11. 

80 United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 
1983). 

81 Tony Perry, "The Simpson Verdicts," LA. Times, at 5 
(Oct. 5, 1995). 



are bound by the oath that you took at the beginning of 
the trial to follow the instructions that I give you, even if 
you personally disagree with them." 82 If the jurors 
explicitly ask about nullification, we are told that the 
judge should warn them of the supposed "fact" that 
acquittal of a guilty man for any reason would be a 
breach of their solemn oaths as jurors. 83 

This ominous-sounding charge has no logical 
substance, although it naturally carries much emotional 
appeal. Jurors know that oaths are serious business, 84 
and the law never permits or encourages anyone to do 
anything contrary to his oath. But despite its 
tremendous popularity among judges, this argument is 
by far the most misshapen stone in the barricade 
judges have been erecting around the jury box. 

To begin with, it is usually false. The typical oath taken 
by jurors today does not forbid them from refusing to 
convict based on their sense of justice. In fact, many 
oaths administered today are barely even intelligible. At 
the beginning of (p.12)the trial, jurors are typically 
asked to swear that they "will well and truly try and a 
true deliverance make between the United States and 
the defendant at the bar, and a true verdict render 
according to the evidence, so help [me] God." 85 

Nobody still alive today knows for sure what it means to 
"make a true deliverance." But nothing in this oath 
would forbid jurors from acquitting if they are convinced 
-- based solely on "the evidence" - that the accused's 
actions were morally blameless and that a conviction 
would be unjust. In such rare cases, no jurors could be 
said to have decided a case "well and truly" if they had 
to disregard their sense of justice to convict. And an 
acquittal in that case would certainly sound like a "true 
deliverance." 86 ("Rescue those being led away to 
death"), and also 87 ("He has sent me to proclaim 
freedom for the captives and release from darkness for 
the prisoners"). 

If a jury refuses to convict a man because of 
overwhelming feelings of mercy or justice, they are not 
returning a "false" verdict. A verdict of "not guilty" based 
on a jury's notions of justice is not affirmatively 
declaring that he is innocent. (The same is true of an 
acquittal based on their conclusion that he has only 
been shown to be probably guilty, but not beyond a 
reasonable doubt.) The general "not guilty" verdict is 
merely a shorthand way of allowing the jury to express, 
for reasons they need not explain, "we do not choose to 
condemn the accused by pronouncing him guilty." 



82 Sixth Circuit Pattern Jury Instruction 1 .02. 

83 Krzyske, 836 F.2d at 1021. 

84 see Exodus 20:7, 16, 

85 United States v. Green, 556 F.2d 71 n. 1 (D.C. Cir. 
1977). 

86 See Proverbs 24:1 1 

87 Isaiah 61:1 

9 of 14 



The standard objection to nullification instructions might 
carry at least superficial plausibility in those jurisdictions 
where the jury is sworn to render "a true verdict 
according to the evidence and the charge of the 
Court." 88 If those same jurors are later instructed by the 
court that they "must convict" where there is proof of 
legal guilt beyond a reasonable doubt, it probably would 
be a violation of such an oath to disregard the court's 
charge and acquit the man because his conduct was 
morally blameless. 

But this objection to nullification instructions utterly begs 
the question. It is clear that defendants can make at 
least a plausible claim to a moral, (and perhaps 
constitutional), right to appeal to the jurors to acquit out 
of justice or mercy. That argument must either stand or 
fall on its own merit, without any regard to the present 
wording of the jurors' oath. 

Constitutional Protection 

It is a colossal red herring to dismiss such claims with 
the rejoinder that nullification acquittals would "violate 
the jurors' oath." No judge can brush aside a plausible 
constitutional argument by saying "You might be right, 
but we do not decide the question, because we have 
already extracted a solemn vow from the jurors to abide 
by a different procedure that arguably violates your 
moral and constitutional rights." That "logic" could lead 
to some remarkable results in jurisdictions determined 
to defeat other constitutional provisions as well. 

A jury's latitude to nullify is deliberately protected by the 
Constitution. Neither the tradition nor the wording of the 
oath administered to the jurors, on the other hand, is so 
dictated. In federal court it is not even prescribed by 
statute. It is simply an old tradition judges have made 
up. If the wording of the oath poses some conflict with 
the jury's constitutional prerogative to nullify, it is clear 
which one must yield the right of way. Courts simply 
have no business (much less lawful authority) asking 
jurors to swear to anything that would violate the 
Constitution or the jury's deeply held convictions about 
justice. 

Besides, while we are on the subject of oaths, it is well 
to remember that there is always one party in the 
courtroom who is required to take an oath prescribed by 
federal law -- and it is not the jury. Before ascending to 
the bench to try his first case, every federal judge is 
required by law to swear or affirm to uphold the 
Constitution (which includes the Sixth Amendment), and 
"that I will administer justice without respect to 
persons." 89 That is a most peculiar-sounding oath for 
anyone who intends to browbeat jurors into putting 



88 United States v. Pinero, 948 F.2d ( 
Cir. 1991). 

89 28 U.S. C. § 453. 



n.3(11th 



aside any notions of "justice" that might stand in the 
way of their willingness to condemn a morally 
blameless man. 

Beyond all this, perhaps the most blasphemous aspect 
of the invocation of the oath is the simple fact that we 
really do not expect jurors to refrain from nullifying in all 
circumstances. That being the case, it ill-behooves us 
to place jurors under an oath that they will not nullify 
(much less lie to them about whether they have taken 
such an oath). 

At least for those jurors who take their oaths seriously, it 
places them in an intolerable and totally unnecessary 
conflict between deeply held moral scruples. It 
demeans the seriousness of the oath, which stands at 
the very bedrock of our system of justice. 90 

And when citizens and jurors gradually get wind of the 
fact that we really don't expect them to always refrain 
from nullifying, despite their alleged oaths to the 
contrary, who can blame any of those people from 
cutting corners with their future oaths as witnesses or 
elected officials? 

5. "We give them enough hints already." Perhaps the 
most baffling excuse for refusing to tell jurors about 
nullification is the excuse that we already give them a 
few ambiguous (p.1 3)clues about their power to nullify. 
In the seminal Dougherty case, for example, which 
remains the most influential opinion ever written on this 
topic, the Court of Appeals reasoned that explicit 
instructions would be superfluous, in part because 
juries get the message in a variety of subtle ways. The 
court based this holding, in part, on its axiomatic 
assumption of "the fact that the judge tells the jury it 
must acquit (in case of reasonable doubt) but never 
tells the jury in so many words that it must convict." 91 

The first problem with this justification is that it proceeds 
on a premise that is no longer generally true. Contrary 
to the Dougherty court's assumption about what a 
criminal trial judge would "never" do, the United States 
Judicial Conference has instructed federal judges to tell 
every criminal jury that "if you are firmly convinced that 
the defendant is guilty of the crime charged, you must 
find him guilty." 92 Several courts have formally approved 
similar instructions telling the jury they "must" convict. 93 
Indeed, one Circuit Court of Appeals recently went so 
far as to state (in an unpublished decision) that 
instructing jurors any other way - for example, that they 
"should" convict -- is at least "arguably" forbidden by the 



90 United States v. Dunnigan, 507 U.S. 87, 97 (1993). 

91 473 F.2d at 1 135 (emphasis added) 

92 Federal Judicial Center, Pattern Jury Instructions 21 
(1987). 

93 See People v. Bernhard Goetz, 73 N.Y. 2d 751, 752, 
532N.E.2d 1273 (N.Y. 1988). 

10 of 14 



supposed "rule" that a jury is not to be told that 
nullification is a permissible course to take. 94 

The reasoning of these cases is indefensible. Telling a 
jury they "must" convict where guilt has been proven 
beyond a reasonable doubt is a serious misstatement of 
the law and "an error of the most egregious nature." 95 
Under our Constitution, by design, a defendant is 
entitled to have his fate decided by a jury even if the 
evidence of his guilt is undisputed and decisive. 96 This 
is because criminal jurors are entitled to "refuse to 
convict even though the evidence supported the 
charge," and any legal system which would strip jurors 
of that discretion would be "totally alien to our notions of 
criminal justice." 97 

Besides, even if we gave jurors the instruction that they 
"should" convict, it would hardly suffice to convey to the 
jury the solemnity of their awesome responsibility to 
acquit on the grounds of justice in exceptional cases. 
The Dougherty court candidly conceded that the 
pregnant implications of that ambiguity "would on their 
face seem too weak to notice." 98 And even if some 
jurors could be fairly trusted to pick up on the subtle 
ambiguity left open in the contrast between instructions 
as to when they "should convict" and "must acquit," 
others will not. Far too much is at stake here to trust 
such nuances to a haphazard system of instructing 
jurors with hints. It violates both the Due Process and 
Equal Protection Clauses to let the outcome of criminal 
cases turn on "coded instructions" that we hope and 
pray a few jurors will be clever enough to notice and 
decipher on their own, all for the benefit of a select and 
arbitrarily chosen group of lucky defendants. Such a 
system of "justice" is no better than a judge who thinks 
too many jurors are relying on the insanity defense, so 
he sticks that portion of his instructions in one of eight 
empty drawers under the table in the jury room. 

We see a similar fallacy in another bizarre compromise 
struck by several lower courts. Caught between the 
conflicting commands of the Sixth Amendment, ("juries 
exist to protect the accused from the Government") and 
the appellate courts ("tell the jury they must ignore the 
demands of justice"), several trial judges have adopted 
the pathetic compromise of allowing the defense 
attorney to talk about nullification in closing arguments, 
but have refused to endorse such arguments in their 
instructions, even after the jurors predictably ask for 



94 United States v. Fuentes, 57 F.3d 1061, 1995 WL 
352808 at **2 (1st Cir. 1995). 

95 Proceedings of the 53rd Jud. Conf. of the D.C Circuit, 
145 F.R.D. 149, 175 (1992) (Remarks of R. Kenneth 
Mundy, Esq.). 

96 Sullivan, 508 U.S. at 277 

91 Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976). 
98 473F.2dat1135. 



further guidance from the judge. This, too, is no 
solution. 

The Supreme Court has repeatedly declared that 
"arguments of counsel cannot substitute for instructions 
by the court." 100 "The former are usually billed in 
advance to the jury as matters of argument, not 
evidence, and are likely viewed as the statements of 
advocates; the latter, we have often recognized, are 
viewed as definitive and binding statements of the 
law." 101 

No matter how infrequently we hope to see juries 
exercise their constitutionally protected power to nullify 
the operation of unjust laws, there is simply far too 
much at stake to entrust that important possibility to the 
implications of "cryptographic instructions," or to closing 
arguments that seem to conflict with the charge of the 
court. In the final analysis, the best answer to all this 
nonsense was written long ago by Judge Cardozo. He 
observed in a related context that he had no objection 
to giving a jury greater latitude with their verdicts in a 
case that "seems to call irresistibly for the exercise of 
mercy, but it should be given to them directly and not in 
a mystifying cloud of words." 102 

6. "If the case is important enough, they will figure out 
we're not too serious about all this anyhow." There have 
been many silly excuses for refusing to tell juries the 
truth about their lawful authority to nullify. But the most 
frightening of all teaches that jurors are most likely to 
nullify only on rare and special cases just as we secretly 
hope they will -- if we falsely suggest to them that they 
have no such power or moral authority. 

The reasoning here is that the lawful power to nullify is 
least likely to be abused, and most likely to be reserved 
for the rare cases when it is truly appropriate, if we 
structure our rules to make nullification "an act in 
contravention of the established instructions." 103 After 
all, the argument goes, jurors always draw their 
understanding about the operation of the system from a 
variety of 104 sources in the popular culture, even apart 
from the judge's instructions. 1 5 This will, in theory, 
allow nullification to rear its ugly head only when the 
inequities of the case are sufficiently compelling to 
persuade the jurors to cook up the idea and violate the 
judge's instructions on their own initiative. 106 



99 E.g., Krzyske, 836 F 2d at 1021. 

100 Carter v. Kentucky, 450 U.S. 288, 304 (1981). 

101 Boyde v. California, 494 U.S. 370, 384 (1990). 

102 "What Medicine Can Do for Law, " in Law and 
Literature 70, 100(1931) (quoted in McGautha v. 
California, 402 U.S. 183, 199 (1971)). 

103 Dougherty, 473 F2d at 1 136-37 

104 (p. 14) 

105 Id. at 1135. 

106 Id. at 1136. 

11 of 14 



This "reasoning" was never persuasive even when it 
was first handed down to the lower courts more than 20 
years ago, as Chief Judge Bazelon noted in his 
dissenting opinion in Dougherty. But it is indefensible 
today. Even if one could possibly hope that 
"nullification" might be a secret to most jurors two 
decades ago, those days are now gone. Everyone who 
followed the key events in O.J. Simpson's criminal trial - 
- which means everyone -- understands by now at least 
this much: jurors in a criminal trial can listen to ten 
months of evidence that the government has publicly 
proclaimed to be overwhelming and conclusive, and still 
acquit after three hours of deliberating without being 
stopped on their way to the parking lot. That is, in the 
main, a pretty fair description of the rough contours of 
the jury's power to nullify. 

At about the same time, a law professor has quickly 
risen to fame with his remarkable plea that black 
political and spiritual leaders join his quest to inform 
their constituencies of their undisputed power to acquit 
black defendants solely because of their race. 107 That 
dirty little secret about our criminal justice system was 
subsequently featured in countless newspapers, 
articles, and television shows. Professor Butler has 
appeared to discuss this fact on 60 Minutes and 
Geraldo Rivera. If there was anyone who hadn't heard 
before this summer, the lid was blown off the story once 
and for all when it ran in the June 1996 issue of 
Reader's Digest. 

Joining in the fray with gusto, of course, is the Fully 
Informed Jury Association 108 , a tax-exempt educational 
group with thousands of members devoted to informing 
future jurors about their power to nullify. They even 
have an impressive and thoughtful site on the Internet 
with hundreds of visitors each day. (Although I am 
naturally loath to admit having visited it in a journal the 
FBI may be reading.) Members have passed out 
pamphlets about nullification by the thousands outside 
of key trials. Legislation to require judges to issue such 
instructions has been introduced in dozens of state 
legislatures, as yet unsuccessfully, generating even 
more public attention to the topic. The group complains 
-- with some justification -- that they desire only to see 
to it that judges, like everyone else in the courtroom, 
are required to tell the truth and the whole truth. 

With all this amateur mass legal education going on in 
earnest, "barber shops and beauty parlors everywhere 
are all abuzz with talk of 'jury nullification,' whether they 
call it by its proper name or not." 109 Our judicial system 
needs to take stock of this reality, and fast. The integrity 



107 Paul Butler, Racially Based Jury Nullification: Black 
Power in the Criminal Justice System, 105 Yale L.J. 
677, 723-25 (1995). 

108 (FIJA) 

109 Clarence Page, "Jury Nullification Can Create 
Justice, " Dayton Daily News, A 10 (Nov. 27, 1995). 



and credibility of the system will be stretched to the 
breaking point as more and more jurors bring to their 
secret deliberations "inside knowledge" about the way 
the system really works, and about the reasons for the 
judge's refusal to share or confirm those details. 

To make matters worse, imagine what will happen 
when even a few people bring into the jury room the 
secret knowledge that our system conceals the facts 
about nullification in the explicit (but unshared) hope 
that the jurors will see through our standard instructions 
and ignore them when that is called for! At that point, 
we will have no reliable protection against the danger 
that some jurors will reason, perhaps privately, that 
maybe some of our other hard and fast "rules of law" 
are also there for public relations purposes, designed to 
be ignored in special cases by jurors sophisticated 
enough to know how the system really works -- or can 
be worked. The integrity of our court system will then be 
shattered beyond repair. 

But for the fragile good faith of jurors, for example, we 
have no logical or moral basis for our otherwise rash 
assumption that a juror can be trusted to acquit, rather 
than convict, a defendant who has not quite been 
proven guilty beyond a reasonable doubt, "even if he is 
convinced the defendant is highly dangerous and 
should be incarcerated." 110 When jurors get wind of the 
appearance that at least some of our most fundamental 
rules are really just window dressing, what protection 
will we have against "nullification convictions" by jurors 
who refuse to release dangerous or despicable villains 
entitled to acquittals on the basis of seemingly unjust 
legal technicalities? 

More and more legal essays are starting to surface with 
the rather casual assertion that "nullification 
convictions" can never be a real danger, in part 
because the judge and the Court of Appeals 
supposedly have the power to overturn a guilty verdict 
that is not supported by the evidence. 111 Those 
assurances, if repeated often enough, will make the 
problem even worse. 

This supposed "fact" about our system of justice is the 
most nefarious of all, and will do irreparable damage if it 
falls into the wrong hands in the jury room. It is hard to 
imagine a clearer illustration of the maxim that a little 
knowledge can be a dangerous thing. Any jurors will be 
far more inclined to convict in close cases if they have 
picked up the mistaken impression that a judge is both 
empowered and likely to correct any mistakes in their 
assessment of the evidence. (That is especially true if 
one of the jurors advises the others that a mistaken 
verdict of acquittal, on the other hand, is final and 



110 Shannon, 1 14 S. Ct. at 2427. 

111 E.g., Gail Cox, "Feeling the Pressure: Jurors Rise Up 
Over Principle and Their Perks, " Nat'l law J., A 1 (May 
29, 1995). 

12 of 14 



unreviewable, which is now fairly common knowledge 
after the Simpson trial.) That would only enhance the 
already great temptation for them to abdicate their 
solemn responsibility by passing the buck to the judge. 

In fact, a judge's power to enter a judgment of acquittal 
despite a contrary jury verdict is merely a token 
safeguard against the unjust conviction of the innocent 
(and anyone 112 else not proven guilty beyond a 
reasonable doubt). It serves to overturn unjust 
convictions only after the extremely rare trial where 
there is no evidence that could satisfy any rational jury 
beyond a reasonable doubt. In all other cases, one 
seeking to overturn a guilty verdict based on the 
sufficiency or quality of the evidence against him 
"follows in the footsteps of countless criminal 
defendants who have made 113 similar arguments," and 
"faces a nearly insurmountable hurdle." 1 4 The judge 
cannot reweigh the evidence, and challenges to a 
witness's lack of credibility are "wasted on an appellate 
court." 115 Once the jury chooses to convict, regardless 
of the reason, its verdict will stand as long as it is based 
on any evidence in the record they might have chosen 
to believe, even testimony that "is totally uncorroborated 
and comes from an admitted liar, convicted felon, large- 
scale, drug-dealing, paid government informant." 116 
Heaven help us all if the jurors of the nation get word of 
these exaggerated suggestions that federal judges 
stand guard against "nullification convictions"! 

Inadequate Solution 

Besides, even if we radically restructured federal law to 
give a judge plenary authority to reverse a conviction 
she thought was not proven beyond a reasonable 
doubt, it still would not solve the problem. Even that 
arrangement would not be adequate to protect the 
constitutional rights of the accused. "It would not satisfy 
the Sixth Amendment to have a jury determine that the 
defendant is probably guilty, and then leave it up to the 
judge to determine whether he is guilty beyond a 
reasonable doubt." 117 

Meanwhile, as more Americans get the justifiable 
impression that the courts are not being perfectly 
candid with jurors, they are naturally and gradually 
losing their normal inhibitions about lying to judges. 
Prior to sensational trials, jurors' rights activists now 
give everyone entering the courthouse pamphlets 
advising of them of their power to nullify, warning them 



ll2 (p.59) 
ll3 (p.60) 

114 United States v. Hickok, 77 F.3d 992, 1002 (7th Cir. 
1996). 

115 United States v. Pulido, 69 F.3d 192, 206 (7th Cir. 
1995). 

116 Pulido, 69 F.3d at 206. 

117 Sullivan, 508 U.S. at 278. 



that the judge will deny it, and pleading with them to 
deny any "knowledge of this material" during jury 
selection. 118 An outspoken law professor has publicly 
declared his willingness to lie under oath during jury 
selection, if necessary, to conceal his true attitudes 
toward nullification and get the chance to nullify death 
penalty cases. 119 That same law teacher has also 
invited Americans by the thousands to decide for 
themselves whether perjury during jury selection might 
be "morally justifiable" for some greater good such as 
racial justice. 120 

If our criminal justice system is to retain some 
semblance of integrity in the long run, it is vital that we 
treat jurors with greater candor about the moral and 
legal contours of their power to nullify. Fortunately, it 
wouldn't take long. A clear and adequate instruction 
could be conveyed in a single sentence, explaining that 
the jury should, (not "must"), convict anyone proven 
guilty beyond a reasonable doubt, unless the jurors 
have a firm belief that a conviction would be 
fundamentally unjust. Such an instruction would give 
defendants all the protection they deserve against 
wrongful prosecution. It would preserve the jury's 
constitutionally protected veto power over unjust 
prosecutions. It would minimize the terrible danger of 
jurors persuading each other that the judge is 
withholding (or concealing) crucial facts about the way 
the system is designed to work. And it would, at long 
last, permit us in good conscience and good faith to ask 
jurors to take a solemn oath to abide by the court's 
charge. 

Proper instructions on nullification are now quite like 
sex education to youth in many different ways. There 
may well have been a time, several decades ago, when 
it was feasible to avoid both subjects altogether, hoping 
that our young wards would never even hear much 
about them until a truly pressing need might arise for 
them to divine a few things on their own initiative. But 
now there are precious few secrets about either subject 
that cannot be found on the Internet and in every major 
magazine - along with many dangerous falsehoods 
and half-truths. If we persist in our refusal to confront 
these delicate topics head-on, jurors and children will 
continue making terrible choices as they learn for 
themselves what a dangerous thing a little knowledge 
can be. And in the process, judges and parents alike 
will continue to lose much of their credibility in the eyes 
of those who correctly perceive their right to honest 
guidance from us. 



118 Joe Lambe, "Bill Would Let Juries Decide Law in 
Cases; Legal Establishment Reacts to Measure with 
Shock, Dread," Kansas City Star, atA1 (April 8, 1996). 

1 19 Paul Butler, Racially Based Jury Nullification: Black 
Power in the Criminal Justice System, 105 Yale L.J. 
677, 724-25 n.236 (1995). 

120 Id. 

13 of 14 



Mr. Duane is an associate professor at Regent Law School in Virginia Beach, Virginia 



14 of 14